Fake Political Websites Draw Attention in DC

Controversy continues to build in Washington, DC regarding an online campaign against Democratic candidates for the House being conducted by the National Republican Campaign Committee. As just reported by National Journal, the NRCC recently adjusted the arguably misleading series of websites and “changed the donation page to make clearer to potential contributors that their money wasn’t going to the smiling Democrats pictured but instead to the Republicans”. The article focuses on the GOP-registered website www.nickrahallforcongress.com which features a large photo of the West Virginia Congressman and then proceeds to describe votes he cast that allegedly could cost thousands of coal mining jobs in that state. The bottom of the webpage does display this: “Paid for by the National Republican Congressional Committee and not authorized by any candidate or candidate’s committee. www.nrcc.org.”

An earlier article on the same website campaign noted that some of the GOP-backed websites were mimicking the design of the Democratic candidates’ official websites, and that the NRCC was purchasing search ads to promote the websites so that the faux website would be the first result returned when the targeted candidate’s name was Googled. That article notes, “Under Federal Election Committee (FEC) regulations, political committees cannot use a candidate’s name in a “special project,” such as a microsite, unless it “clearly and unambiguously shows opposition to the named candidate.” Some campaign finance experts and outside campaign watchdog groups contend that the NRCC websites cross the line and violate the FEC regulations, but Republican spokespersons defend them as “100 percent legal”. The FEC is highly unlikely to crack down on the practice because the Commission is evenly split and highly gridlocked between three Democrats and three Republicans.

With the FEC unlikely to act and the NRCC clearly not backing down, it will be interesting to see if any of the targeted candidates tries to shut down a faux website through an action brought under the Anticybersquatting Consumer Protection Act (ACPA). Like the UDRP and URS, that U.S. law prohibits the bad faith registration and use of a domain that is identical or confusingly similar where there is intent to profit, and in addition to trademarks the Act also covers “a famous personal name” (that could lead to judicial consideration of the issue of whether all members of Congress, as well as first –time candidates who have yet to be elected, are “famous” for ACPA purposes). One of the factors that a court may consider in regard to finding bad faith under the ACPA is whether the registrant has engaged in the registration of multiple domain names known to be identical or confusingly similar to marks protected under the Act. On the other hand, the Savings Clause of the Act preserves fair use defenses under the Trademark Act as well as “a person’s right of free speech or expression under the first amendment of the United States Constitution” – and we presume that the NRCC would argue that it was only exercising its First Amendment rights to criticize the positions of the targeted Democrats. U.S. courts are generally loathe to wade into and decide political disputes.

While the NRCC’s Democratic counterpart has apparently not engaged in such tactics (yet), we’d be surprised if Democrat candidates or their supporters hadn’t registered similar websites targeting Republican opponents. With all the independent money sloshing around U.S. politics these days it’s almost inevitable that such deliberately confusing websites will gain wider use as a campaign tool.

New gTLDs are likely to figure in this practice going forward. The Republican State Legislative Committee (RSLC) succeeded in its bid to acquire .gop as a gTLD for use solely by Republican candidates (no similar bid was made for an official Democratic Party gTLD). But the RSLC’s community objection to .republican failed, and the same portfolio applicant behind that bid will also soon be opening .democrat to domain registrations as well. So we suppose it won’t be long before these types of websites migrate to those new gTLDs, with the right-of-the-dot label arguably further confusing voters in regard to their origin and sponsorship.

All of this political squabbling will add an interesting background to any future Congressional discussion of the adequacy of the ACPA in the era of new gTLDs.